Ayaz alias Siko V. The State,
Bench: Sardar Ahmed Haleemi
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This case involved Ayaz alias Siko, who was convicted by a Special Judge for Control of Narcotic Substances in Turbat for possessing 2000 grams of charas (hashish), allegedly recovered from his waistband during a police patrol. He was sentenced to one and a half years in prison plus a fine. He appealed to the Balochistan High Court.
The High Court examined the evidence, particularly the testimony of the Head Moharror (record keeper), a key prosecution witness responsible for handling the seized drugs. This witness admitted that the samples sent for laboratory analysis were dispatched through a "special messenger," and also revealed that his official statement to police was recorded 23 days after the incident, rather than promptly. The court found this delay troubling because it created uncertainty about whether the drug samples were properly secured and handled from the time of seizure until they reached the laboratory for testing.
The court held that when there is doubt about this "chain of custody" - the unbroken trail proving evidence wasn't tampered with or mixed up - that doubt must benefit the accused, not the prosecution. Citing a Supreme Court precedent, the judges emphasized that a compromised chain of custody makes laboratory reports unreliable for securing a conviction. The court also reiterated the constitutional principle that personal liberty is precious and should only be denied for compelling reasons.
As a result, the High Court overturned the conviction, acquitted Ayaz, and ordered his release, discharging his bail bonds. This case highlights how procedural lapses in
یہ مقدمہ ایاز عرف سیکو سے متعلق ہے، جسے ترین اسپیشل جج برائے کنٹرول آف نارکوٹک سبسٹینسز نے 2000 گرام چرس کی برآمدگی کے الزام میں سزا سنائی تھی، جو مبینہ طور پر پولیس گشت کے دوران اس کی کمر سے بندھے کپڑے سے برآمد ہوئی تھی۔ اسے ڈیڑھ سال قید اور جرمانے کی سزا دی گئی تھی۔ اس نے اس فیصلے کے خلاف بلوچستان ہائی کورٹ میں اپیل دائر کی۔
ہائی کورٹ نے شواہد کا جائزہ لیا، خاص طور پر ہیڈ محرر کی گواہی کا، جو استغاثہ کا ایک اہم گواہ تھا اور برآمد شدہ منشیات کی حفاظت و نگرانی کا ذمہ دار تھا۔ اس گواہ نے تسلیم کیا کہ لیبارٹری تجزیے کے لیے بھیجے گئے نمونے ایک "خصوصی قاصد" کے ذریعے روانہ کیے گئے تھے، اور یہ بھی انکشاف کیا کہ اس کا سرکاری بیان پولیس کے سامنے واقعے کے فوراً بعد نہیں بلکہ 23 دن گزرنے کے بعد قلمبند کیا گیا تھا۔ عدالت نے اس تاخیر کو تشویش ناک قرار دیا کیونکہ اس سے یہ غیر یقینی پیدا ہوت
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2024 Y L R 1617 [Balochistan (Turbat Bench)] Before Naeem Akhtar Afghan, C.J. and Sardar Ahmed Haleemi, J AYAZ alias SIKO ---Appellant Versus The STATE--- Respondent Criminal Appeal No. (T) 03 of 2022, decided on 7th October, 2022. (a) Control of Narcotic Substances Act (XXV of 1997) --- ----S. 9(c) ---Possession of narcotic ---Appreciation of evidence ---Safe custody of recovered narcotic and its safe transmission to the forensic laboratory not proved---Prosecution case was that 2000 grams charas was recovered from the possession of the accused ---Head Moharror, who was one of the prosecution witnesses, stated in his cross -examination that the samples for analysis were sent to laboratory by a special messenger ---Said witness stated that his statement under S. 161, Cr.P.C., was recorded on 27th February, whereas the incident took place on 4th February, as such there was a delay of 23 days in recording of statement of said witness ---Such delay made the case of prosecution doubtful ---In case of any doubt arising in the link of chain of safe custody and transmission, the benefit of the same will go to the accused ---Appeal against conviction was allowed, in circumstances. Mst. Razia Sultana and others v. The State 2019 SCMR 1300 rel. (b) Constitution of Pakistan --- ----Art. 9 ---Security of person--- Scope ---Liberty of a person is a precious right, which has to be resolved in favour of the accused being favourite child of law, and denial of same requires extreme compelling reasons. Jadain Dashti for Appellant. Sudheer Ahmed, Deputy P.G. for the State. Date of hearing: 9th September, 2022. JUDGMENT SARDAR AHMED HALEEMI, J. ---This appeal is directed against the judgment dated 14th January, 2022 (hereinafter the "impugned judgment") passed by learned Special Judge Control of Narcotic Substances, Mekran at Turbat (hereinafter the "trial Court"), whereby the appellant was convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter the "Act, 1997") and sentenced to suffer one and half (1 1/2 ) years R.I with fine of Rs. 10,000/ - and in default of payment of fine, the appellant shall further undergo for a period of two months S.I. Benefit of section 382- B, Cr.P.C. was also extended in favour of the appellant.
2. The prosecution story, in brief, is that on the complaint of Sher Jan, SI/SHO, an FIR No. 02 of 2021 dated 4th February 2021 under section 9 (c) of the Act, 1997 was registered with Police Station Nasirabad District, Kech, wherein the complainant alleged that on the fateful day, he along with other police officials were on area patrolling, where they received secret information that one Ayaz alias Siko was dealing drugs in his den situated at Nodiz Jangle Pargok; on such information, they raided the place and found a person present there, who was apprehended, who disclosed his name as Ayaz alias Siko son of Hassan (the appellant); from his personal search, a white colour plastic bag containing two packets of charas were recovered from neefa of his shalwar, which were taken into possession; on weighing, each packet came to 1000 gram total 2000 grams, hence this report.
3. After usual investigation, challan was submitted before the trial Court, wherein charge under section 9(c) of the Act, 1997 was framed and read over to the appellant, to which he pleaded not guilty and claimed trial.
4. The prosecution produced five witnesses. After the completion of prosecution evidence, the appellant was examined under Section 342, Cr.P.C, wherein he denied the allegations levelled against him and claimed innocence. He neither examined himself under section 340(2), Cr.P.C. nor produced any witness in his defence. However he produced a copy of statement of PW -3 Riaz Ahmed in case "State v. Alam" as Mark -A.
5. The trial Court vide impugned judgment convicted and sentenced the appellant, hence this appeal.
6. Learned counsel for the appellant contended that the trial Court has miserably failed to prove the charge against the appellant beyond reasonable doubt and despite, benefit of doubt whereof has not been extended in favour of the appellant, as such the impugned judgment is liable to be set aside.
7. On the other hand, the learned Deputy Prosecutor General supported the impugned judgment and contended that the trail Court while passing the impugned judgment, considered all aspects of the matter and passed a well -reasoned judgment, which cannot be disturbed, hence is liable to be sustained.
8. We have heard the learned counsel for the appellant as well as learned Deputy Prosecutor General and perused the record with their able assistance.
9. Perusal of record reveals that the police patrolling party while on patrolling, on spy information apprehended the appellant and recovered from his possession 2000 grams charas from Neefa of his Shalwar. To prove such recovery, the prosecution examined five PWs. Perusal of statement of PW -3 Riaz Ahmed, Head Moharror reveals that in his cross - examination, he stated that the samples for analysis were sent to Quetta by special messenger and during examination -in-chief, he stated that his statement under section 161, Cr.P.C. was recorded on 27th February, 2021, whereas the incident was taken place on 4th February, 2021, as such there is a delay of 23 days in recording of statement of PW -3 under section 161, Cr.P.C. therefore, same makes the case of prose -cution doubtful and any doubt if arises in the link of chain of safe custody and transmission, the benefit of the same will go to the accused. In this regard, reliance is placed in the case of Mst. Razia Sultana and others v. The State 2019 SCMR 1300, wherein it has been held as under: "The chain of custody stands compromised as a result it would be unsafe to rely on the report of the chemical examiner. This Court has held time and again that in case the chain of custody is broken, the Report of the chemical examiner loses reliability making it unsafe to support conviction."
10. Likewise, it is also settled principle of law that liberty of a person is a precious right, which has to be resolved in favour of the accused being favourite child of law, denial of same requires extreme compelling reasons.
11. In view of the above, we have reached to the conclusion that the prosecution could not prove the safe custody and transmission of representative samples from the place of occurrence to the office of Government analyst; the prosecu- tion has failed to prove its case against the appellant beyond reasonable doubt. For the above reasons, the appeal is allowed. The impugned judgment dated 14th January, 2022 passed by the learned Special Judge, Control of Narcotic Substances, Mekran at Turbat is set aside and the appellant Ayaz alias Siko son of Hassan is acquitted of the charge under section 9(c) of the Act, 1997 in case FIR No. 02 of 2021 dated 4th February 2021 Police Station Nasirabad District, Kech. The appellant is on bail. His bail bonds stand discharged. JK/43/Bal. Appeal allowed.